New York Penal Law § 235.05: Obscenity in the Third Degree

Obscenity in the third degree is a criminal offense defined under New York Penal Law § 235.05. This offense is committed when an individual engages in the sale or offer to sell, promotion or possession of obscene material, or exhibits or displays it publicly, with intent to make it available for sale, disseminate it to others, or distribute it to others. Obscene material, as defined under New York Penal Law, is any material that depicts or describes sexual conduct in a manner that is offensive to contemporary community standards and lacks serious literary, artistic, political, or scientific value.

People v. Rinaldi, 138 A.D.3d 1117 (2d Dep't 2016). In this case, the defendant was charged with Obscenity in the Third Degree after being found in possession of several DVDs containing pornographic material. The court held that the DVDs were obscene and lacked any serious literary, artistic, political, or scientific value. The defendant argued that the material had value as an expression of sexual freedom, but the court disagreed and found him guilty of the offense. The court held that the defendant had knowingly possessed the material with the intent to promote or distribute it, making him guilty of the offense of Obscenity in the Third Degree.

People v. Jacobsen, 152 Misc. 2d 326 (N.Y. City Crim. Ct. 1991). In this case, the defendant was charged with Obscenity in the Third Degree after he sold a book containing sexually explicit material to an undercover police officer. The defendant argued that the book was not obscene and had serious literary and artistic value. However, the court disagreed and found the defendant guilty of the offense. The court held that the material depicted sexual conduct in a manner that was offensive to contemporary community standards and lacked any serious literary, artistic, political, or scientific value.

People v. Hanover, 184 A.D.2d 222 (1st Dep't 1992). In this case, the defendant was charged with Obscenity in the Third Degree after he sold sexually explicit videos to an undercover police officer. The defendant argued that the videos had value as an expression of sexual freedom and were not obscene. However, the court disagreed and found the defendant guilty of the offense. The court held that the videos depicted sexual conduct in a manner that was offensive to contemporary community standards and lacked any serious literary, artistic, political, or scientific value. The court also noted that the defendant had knowingly promoted the videos with the intent to make them available for sale to others, making him guilty of the offense of Obscenity in the Third Degree.

1. Obscenity in the second degree. Section 235.06
2. Obscenity in the first degree. Section 235.07
3. Disseminating indecent material to minors in the second degree. Section 235.21
4. Disseminating indecent material to minors in the first degree. Section 235.22

Obscenity in the third degree under New York Penal Law § 235.05 is a class A misdemeanor. If convicted, the sentence for this offense can include up to 1 year in jail, probation, fines, and community service.

A person is guilty of obscenity in the third degree when, knowing its content and character, he:

1. Promotes, or possesses with intent to promote, any obscene material; or
2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

Obscenity in the third degree is a class A misdemeanor.

Obscenity in the third degree is a class A misdemeanor. Even though it is a misdemeanor, a conviction can mean jail time and will mean a criminal record. Therefore, it is crucial for individuals who are facing charges related to this offense to seek the assistance of an experienced criminal attorney serving New York. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Nassau County, Queens, Bronx, Brooklyn, Long Island, Staten Island, Suffolk County, and Westchester County.